[EL] 5th Circuit Texas voter id ruling; more news
Rick Hasen
rhasen at law.uci.edu
Wed Aug 5 11:56:18 PDT 2015
Breaking and Analysis: 5th Circuit Affirms Texas Voter ID Violates
Section 2, Remands on Question of Discriminatory Purpose
<http://electionlawblog.org/?p=74972>
Posted onAugust 5, 2015 11:04 am
<http://electionlawblog.org/?p=74972>byRick Hasen
<http://electionlawblog.org/?author=3>
A unanimous panel of the United States Court of Appeals for the Fifth
Circuit has issuedan opinion
<http://electionlawblog.org/wp-content/uploads/texas-5th-cir.pdf>which
is a great (but not complete) victory for those challenging Texas’s
strict voter id law. The court affirms that the law violates Section 2
of the Voting Rights Act, but rejects the claim of discriminatory
purpose and that the law constitutes a poll tax. The court remands for
more findings on discriminatory purpose and for a decision on the remedy
to the Section 2 violation. That remedy could allow Texas to keep
enforcing its law for most people, so long as it gives ways to vote for
those who face burdens under the law.
This is a narrow but important victory coming on the eve of the 50th
anniversary of the passage of the Voting Rights Act.
As I noted when this panel was drawn, this is about the most liberal
panel plaintiffs could have expected in the 5th Circuit. It is quite
possible that Texas will try to take this case en banc to the full 5th
Circuit, or perhaps to the Supreme Court. It is also possible that Texas
would let this play out in another round at the district court and then
appeal, but that seems less likely.
This also strikes me as an opinion written as narrowly as possible to
still give a victory to the plaintiffs. (Perhaps that was the price of
a unanimous opinion?) Winning on a Section 2 claim, even given the
narrow remedial scope (more on that below) is still a significant
victory for Voting Rights plaintiffs and the Department of Justice. We
will see if it holds.
Here is some more detailed analysis of the case:
1. */Discriminatory purpose/. *In a key loss for plaintiffs, the 5th
Circuit remanded the question of racially discriminatory purpose to the
trial court, under a standard that will likely be very hard to meet.
Discriminatory purpose matters for a really important reason: not only
will lead to a finding of the law’s unconstitutionality and violation of
section 2 of the Voting Rights Act, it can also provide the basis (under
Section 3 of the Act) for the court to order Texas “bailed-in” for
federal oversight (“preclearance”) for up to 10 years. The 5th Circuit
started its purpose analysis by noting: “We recognize the charged nature
of accusations of racism, particularly against a legislative body, but
we also recognize the sad truth that racism continues to exist in our
modern American society despite years of laws designed to eradicate it.”
It said that the trial court erred in finding discriminatory purpose
based upon (1) old evidence of Texas’s official racial discrimination in
voting; (2) statements from opponents of the law about the purpose of
the majority passing it; and (3) post-enactment statements, again mostly
by opponents of the law. It said the trial court needs to find stronger
evidence of contemporaneous statements and actions of the legislature in
reaching this decision. So this issue gets remanded, but the onerous
standards means it will be very tough to prove such purpose.
2.*/Discriminatory effect under Section 2./*This is the big win for the
plaintiffs. The 5th Circuit adopted the two part “vote denial” test for
Section 2 claims used by the 4th and 6th circuits (which is probably the
standard that the trial court in the North Carolina voter id case will
apply). Applying the test, the 5th Circuit affirmed the trial court’s
finding of a Section 2 violation. It upheld the finding that the law
will have a discriminatory impact on minority voters—that is, minority
voters are disproportionately likely to lack one of the types of ID
which are allowed under Texas law. Then, applying the “totality of
circumstances” test//Gingles/Zimmer//Senate factors, the 5th Circuit
found enough evidence to sustain a finding that SB 14 “produces a
discriminatory result that is actionable because [it] . . . interact[s]
with social and historical conditions in Texas to cause an inequality in
the electoral opportunities enjoyed by African-Americans and Hispanic
voters.” Particularly interesting in this analysis is the question
whether Texas’s explanations for why it needed its law (antifraud, voter
confidence) were tenuous. The trial court found that they were because
the evidence did not support the need for voter id for either of these
purposes, and this factor worked in favor of finding of a Section 2
violation. Also interesting is that the 5th Circuit relied (as I
anticipated <http://electionlawblog.org/?p=73758>) on the Supreme
Court’s recent Texas housing case in finding enough evidence of
disparate impact. “As such, we conclude that the district court did not
clearly err in determining that SB 14 has a discriminatory effect on
minorities’ voting rights in violation of Section 2 of the Voting Rights
Act. As discussed below, we remand for a consideration of the
appropriate remedy in light of this finding in the event that the
discriminatory purpose finding is different.”
3. */First and Fourteenth Amendment violations. /*Using the principle of
constitutional avoidance, the 5th Circuit refused to consider whether
the laws violated the fundamental right to vote, an issue which could be
revived if, for example, an en banc 5th Circuit rejects the panel’s
views on the Section 2 violation.
4. */Poll tax. /*The court rejected the poll tax argument, in part
because since the district court decision Texas amended its law to get
rid of a payment to get underlying documents to get a state issued id.
“As amended by SB 983, Texas law no longer imposes any direct fee for
any of the documentation required to obtain a qualifying voter ID.” The
court also held the indirect costs of voting could not constitute a poll
tax. The court added this: “This record reveals that Plaintiffs and
those who lack both SB 14 ID and underlying documentation face more
difficulty than many Texas voters in obtaining SB 14 ID. Plaintiffs and
others similarly situated often struggle to gather the required
documentation, make travel arrangements and obtain time off from work to
travel to the county clerk or local registrar, and then to the DPS, all
to receive an EIC. These greater difficulties receive consideration in
the Section 2 discriminatory effect analysis, but Supreme Court
jurisprudence has not equated these difficulties, standing alone, to a
poll tax.”
5. */Remedy. /*The 5th Circuit held that a remedy after a finding of
discriminatory effects should be narrower, and more deferential to the
state, than one where there is also a finding of discriminatory purpose.
The 5th Circuit strongly suggests that if the trial court on remand
finds no discriminatory purpose, it needs to consider a narrower remedy
than simply declaring the voter id law as something which cannot be used
under any circumstances.
Clearly, the Legislature wished to reduce the risk of in-person voter
fraud by strengthening the forms of identification presented for voting.
Simply reverting to the system in place before SB 14’s passage would not
fully respect these policy choices—it would allow voters to cast ballots
after presenting less secure forms of identification like utility bills,
bank statements, or paychecks./See/TEX. ELEC. CODE§ 63.001(b) (West
2010). One possibility would be to reinstate voter registration cards as
documents that qualify as acceptable identification under the Texas
Election Code. The court could also decree that, upon execution of an
affidavit that a person does not have an acceptable form of photo
identification, that person must be allowed to vote with their voter
registration card.” This considerably narrows the scope of a Section 2
victory.
6.*/Timing./*//The court cautions that this case should not run up
against election deadlines, as it did last time, raising “Purcell
principle <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>”
issues: “We urge the parties to work cooperatively with the district
court to provide a prompt resolution of this matter to avoid election
eve uncertainties and emergencies.”
7. */A Constitutional Challenge to Section 2 for the Supreme Court//?
/*Lurking in a footnote is the 5th Circuit’s rejection of the argument
that if Texas voter id law violates Section 2 of the Voting Rights Act,
then Section 2 is unconstitutional. The issue is one the 5th Circuit
likely won’t address, but it could come up for the Supreme Court. (FN
24: “To the extent the State argues that the “results” test is
unconstitutional, we note that this court and many others have upheld
its constitutional validity./See, e.g./,/Vera/, 517 U.S. at 990–91
(collecting cases upholding Section 2’s constitutionality);/Jones/, 727
F.2d at 373–74. “Congressional power to adopt prophylactic measures to
vindicate the purposes of the fourteenth and fifteenth Amendments is
unquestioned” and “[o]n those occasions when the Court has stricken
enactments as exceeding congressional power under the enforcement
clauses of the fourteenth or fifteenth amendments, the congressional
objective has usually deviated from the central purposes of those
amendments—to ensure black equality.”/Jones/, 727 F.2d at 373–74. We are
bound by these precedents to conclude that Section 2, as applied here,
does not deviate from that purpose.”).
[/This post has been updated./]
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Supreme Court
<http://electionlawblog.org/?cat=29>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Two years after scandal, the IRS still struggling”
<http://electionlawblog.org/?p=74970>
Posted onAugust 5, 2015 10:57 am
<http://electionlawblog.org/?p=74970>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/news/powerpost/wp/2015/08/05/two-years-after-scandal-the-irs-still-struggling/?postshare=5231438796327970>:
The Senate Finance Committee will release on Wednesday a bipartisan
report on the 2013 scandal involving the Internal Revenue Service
targeting conservative groups.
Much will be made about what led to the controversy, but more than
two years later the agency appears no better able to handle the
growing crush of political nonprofits raising many millions this
election season.
The agency has shuffled its staffing, including the high-profile
retirement of Lois Lerner
<http://www.politico.com/story/2015/04/lois-lerner-no-contempt-charges-justice-department-116577.html>,
and taken steps to better manage the division that oversees
nonprofit applications. Those moves have decreased the chances that
the specific targeting leading to the scandal could be repeated. But
the agency is frozen by a hobbled budget and hostile relationship
with the committees that oversee it.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Rand Paul super PAC head indicted over alleged 2012 campaign
finance violations” <http://electionlawblog.org/?p=74968>
Posted onAugust 5, 2015 10:04 am
<http://electionlawblog.org/?p=74968>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/news/post-politics/wp/2015/08/05/rand-paul-super-pac-head-indicted-over-alleged-2012-campaign-finance-violations/?postshare=6501438794177524>:
Jesse Benton, a longtime ally of Sen. Rand Paul (R-Ky.) who is
heading up a super PAC supporting his presidential campaign, was
indicted Wednesday on charges that he concealed payments to a former
Iowa state senator.
The charges stem froman alleged
<http://www.washingtonpost.com/news/post-politics/wp/2014/08/29/mcconnell-campaign-manager-jesse-benton-resigns-amid-federal-probe-into-2012-endorsement-for-pay-deal/>endorsement-for-pay
scheme
<http://www.washingtonpost.com/blogs/post-politics/wp/2014/08/28/endorsement-for-play-investigation-that-brought-kent-sorenson-guilty-plea-is-ongoing/>during
the 2012 presidential campaign of former Republican congressman Ron
Paul of Texas. Two others were also indicted.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“A wealthy oligarchy of donors is dominating the 2016 election”
<http://electionlawblog.org/?p=74964>
Posted onAugust 5, 2015 7:44 am
<http://electionlawblog.org/?p=74964>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo editorial
<https://www.washingtonpost.com/opinions/a-wealthy-oligarchy-of-donors-is-dominating-the-2016-election/2015/08/04/153879ee-3ad3-11e5-8e98-115a3cf7d7ae_story.html>:
THE UNITED States may be turning a corner in presidential politics.
Although the election itself is more than a year away, the latest
reports to the Federal Election Commission show that a wealthy
oligarchy of donors has come to dominate campaign finance,
particularly in the crowded Republican contest.Fewer than 400
families are responsible for almost half the money raised in the
campaign so far
<http://www.nytimes.com/2015/08/02/us/small-pool-of-rich-donors-dominates-election-giving.html>,
according to an analysis by the New York Times. This class of
wealthy patrons, some with new fortunes and others of long-standing,
is throwing money into campaigns, not of all which will end happily.
But the preeminence of this clan of tycoons so early in the season
is not a good sign.
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>
WI John Doe Case Could Well Be Heading to #SCOTUS
<http://electionlawblog.org/?p=74962>
Posted onAugust 5, 2015 7:34 am
<http://electionlawblog.org/?p=74962>byRick Hasen
<http://electionlawblog.org/?author=3>
Patrick Marley
<http://www.jsonline.com/news/statepolitics/john-doe-prosecutor-asks-state-supreme-court-to-reconsider-ruling-b99551002z1-320757271.html>for
the Journal Sentinel:
A special prosecutor this week asked Wisconsin’s high court to
reconsider its decision ending an investigation intoGov. Scott
Walker’s
<http://www.jsonline.com/news/statepolitics/scott-walker-290106981.html>campaign,
in a sign he is considering taking the matter to the U.S. Supreme Court.
Special prosecutor Francis Schmitz also asked the state Supreme
Court on Tuesday to stay itsruling last month
<http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html>ending
the probe and requiring him to destroy evidence he collected in the
investigation,according to online court records
<http://wscca.wicourts.gov/appealHistory.xsl;jsessionid=B113F086405FDD9E4B579DF21BF2E05C?caseNo=2014AP000296&cacheId=A31CBD36AE8AF236C9101E0C8E08A089&recordCount=1&offset=0&linkOnlyToForm=false&sortDirection=DESC>….
Schmitz can ask the U.S. Supreme Court to review their decision to
stay the case, as well as the state Supreme Court’s finding that
issue groups and candidates can closely cooperate with each other.
Tuesday’s filing is the clearest sign he is considering doing that.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,Supreme Court
<http://electionlawblog.org/?cat=29>
Federal Court Upholds AL Ban on Certain Party PAC-to-PAC Transfers
<http://electionlawblog.org/?p=74960>
Posted onAugust 5, 2015 7:32 am
<http://electionlawblog.org/?p=74960>byRick Hasen
<http://electionlawblog.org/?author=3>
Alabama Democratic Conference v. Strange
<http://www.leagle.com/decision/In%20FDCO%2020150804889.xml/Alabama%20Democratic%20Conference%20v.%20Strange>:
Alabama’s Fair Campaign Practices Act (“FCPA”) prohibits a political
action committee (“PAC”) from making contributions, expenditures, or
transfers of funds to another PAC, except that a PAC that is not a
“principal campaign committee” may make contributions, expenditures,
or transfers of funds to a principal campaign committee. ALA. CODE §
17-5-15(b). This law was enacted in response to concerns that donors
were concealing their contributions to candidates by “laundering”
those contributions through multiple PACs before the donation
finally arrived with a candidate. The broad language of the statute
prohibits all contributions, expenditures, and transfers of funds
between PACs, except as noted above, including those from one PAC to
a second PAC where the money is to be used solely for “independent
expenditures.” The Alabama Democratic Conference (“the ADC”) asserts
the prohibition on its ability to receive contributions to be used
solely for independent expenditures violates the PAC’s First
Amendment rights. At the outset, the court notes that the ADC does
not challenge ALA. CODE § 17-5-15(b) on its face, but rather brings
an as applied challenge. (Doc. 1 at ¶¶ 29-43)….
In this case, the court finds that the ban on contributions,
expenditures, and transfers of funds to the ADC from other PACs is
closely drawn to further the State’s anti-corruption interest. In
light of lack of evidence of organizational separation or other
safeguards to prevent contributions that are nominally for
independent expenditures ending up in the Candidate Account, the
court cannot say that a more narrowly tailored solution, such a
limit on the amount another PAC could contribute to ADC, would
adequately protect the State’s interest. Given the lack of
safeguards, even a small donation could end up in the wrong account.
Further, the impact of the PAC-to-PAC transfer ban on the ADC’s
associational rights is minimal. The ADC is still able to receive
unlimited contributions from individuals; it can still make
unlimited contributions to candidates; and it can make unlimited
independent expenditures. Because ALA. CODE § 17-5-15(b) is closely
drawn to serve a sufficiently important state interest, the ADC’s as
applied constitutional challenge must fail./See Catholic Leadership
oal. of Texas,/764 F.3d at 445 (“Likewise, Texas’s complete ban on
Plaintiffs’ proposed contribution is closely drawn to its
anticircumvention interest insofar as Plaintiffs have failed to
provide any clear safeguard that sufficiently assures that no part
of the corporate contribution will end up being transferred to a
candidate.”).
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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